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Judge slams Metro Police and DA; Metro settles wrongful conviction case for a record $1.2 million

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Posted at 4:59 PM, Feb 08, 2023

This story is a partnership between the Nashville Banner and NewsChannel 5. The Nashville Banner is a nonprofit, nonpartisan news organization focused on civic news and will launch later this year. For more information, visit NashvilleBanner.com

Paul Shane Garrett was incarcerated for 10 years for a crime former District Attorney Torry Johnson’s office and the Metro Nashville Police Department concluded there was “no credible evidence” he had committed. And now their actions have drawn a stinging rebuke from the bench and a $1.2 million court settlement.

In one of his final acts on the bench, Criminal Court Judge Mark Fishburn blasted both the police and Johnson for their role in the 2004 conviction of Garrett, accusing them of knowingly leaving an innocent man in jail for a decade.

“Their intentional decisions were the act of cowards to hide the truth for fear of public humiliation and legal retribution that might arise if their wrongdoing saw the light of day,” Fishburn wrote in an extraordinary six-page opinion in December in the case of Calvin Atchison, the man police now say killed sex worker Velma Tharpe in 2000.

Fishburn said the case highlighted “intentional wrongdoing on so many occasions and at all levels of local law enforcement.”`

In 2021, the Conviction Review Unit of DA Glenn Funk’s office vacated Garrett’s conviction after an investigation found numerous problems with the case:

  • Police detectives Roy Dunaway and E.J. Bernard engaged in questionable interrogation practices to concoct a “confession” that Dunaway later testified to in court. Dunaway was later demoted for false testimony in another case and Bernard later resigned for falsifying information in a different homicide investigation.
  • DNA tests conducted in 2001 repeatedly excluded Garrett as a suspect.
  • As early as 2004, police were informed of a positive match in the national CODIS database to Atchison’s DNA in semen both in and on Tharpe’s body. Neither Garrett nor his counsel were notified of the match.
  • As early as 2001, the DA’s office concluded that Garrett had not confessed and assistant district attorneys did not believe “we could make the case.” But based on the testimony of jailhouse informants, Garrett was indicted for murder at the direction of then-Deputy DA Tom Thurman.

Garrett filed suit against Metro and the police officers in 2022. The Metro Council approved a settlement agreement worth $1.2 million Tuesday night, the second highest the city has paid for police misconduct and the most for a wrongful conviction.

But according to Fishburn, all of those problems were well known to then-DA Johnson a decade before.

In 2011, two of MNPD’s top detectives, Mike Roland and Pat Postiglione, were investigating a set of cold cases involving sex workers who were murdered in the same period as Tharpe. In the process, they reviewed the case of Garrett, a tow truck driver who had pleaded guilty after sitting in jail during a two-year investigation. According to Roland, the Garrett file was a mess because of poor documentation, shaky informants, deceptive interviews and a pair of problematic officers at the center of the investigation.

Confronted with this problem, Johnson convened what Judge Fishburn describes as a “clandestine” meeting in 2011. Roland and Postiglione presented their findings of Garrett’s innocence to Johnson, MNPD Chief Steve Anderson, Deputy DA Tom Thurman and ADA Kathy Morante. The potential fallout from the case was serious enough that the public relations leaders for the police and district attorney’s office, Don Aaron and Susan Niland, also were there. If Roland was right and Garrett was not the killer, an innocent man had been in prison for almost a decade.

Johnson dispatched Morante to investigate. Within weeks, she filed a 10-page report that reached three conclusions: First, there was “no credible evidence that Garrett murdered Tharpe.” Second, to the contrary, there was “some indication of Garrett’s innocence.” And finally, there was “evidence that Atchison murdered Tharpe.”

Fishburn describes Johnson’s actions after receiving the report as “malfeasance.” Johnson’s only action was to send a letter to the parole board saying that there were “serious questions” about the case, but a year later, in a 2012 court hearing, Johnson’s office defended Garrett’s conviction.

Because of the elapsed time, Fishburn says, the state’s ability to prosecute Atchison for the murder has been imperiled.

“There is no question that the delay was an intentional decision that was overtly made as early as January 2001, when Mr. Garrett was excluded as a contributor of the DNA found on Ms. Tharpe, yet prosecution and even persecution of him continued until he was psychologically beaten into submission by Detectives Dunaway and Bernard,” Fishburn wrote. “An intentional decision to further delay the initiation of adversarial proceedings was again emphatically made when Det. Dunaway destroyed the CODIS report received from the TBI in December 2004. But the most damning and unconscionable intentional decision to further delay indictment of Mr. Atchison occurred when the highest levels of law enforcement within Davidson County refused to take any legal action to undo an egregious affront to the entire legal system.”

Civil rights attorney Kyle Mothershead said he hasn’t seen anything like Fishburn’s order.

“(I’ve) never seen a judge do that in a written ruling,” he said. “I have never seen anything like that before. That's unique in my 20-year career for a judge to put those words to paper.”

In a 2021 letter to Funk at the time Garrett’s conviction was vacated, Johnson said he would change his mind if there were someone else held responsible.

“Given the history of this case, it is fair to say that I do not have confidence in Mr. Garrett’s conviction and that there are genuine concerns about his guilt, but I remain unaware of compelling evidence that he should be exonerated,” he wrote. “Of course, that could change if your office were to charge and convict another suspect for the death of Ms. Tharpe.”

Vanessa Potkin, the director of special litigation at The Innocence Project, said this kind of view of innocence by prosecutors is “a cop out” bourne of politics.

“This is an attitude that we frequently experience and it is completely misguided, this notion that there can be an exoneration if you're literally swapping out one person, the wrongfully convicted person for another,” she said. “It's not a perspective that's rooted in the law. There's no legal burden that says that in order to demonstrate innocence, you have to identify who actually committed the crime.”

Mothershead agreed.

“That is horrifying, to say that you must trade in another body in order to release this innocent man – you know, the old scapegoat: Someone has to pay the price. That's horrible,” he said. “That is not the American system.”

In an interview with the Banner on Tuesday, Johnson said he was unsure if Garrett should have been exonerated.

“I have no idea,” Johnson said. “I'm happy if the courts are satisfied with that. Then that's fine. And then that's where we are. I mean, listen, if he's wrongfully convicted, more power to him. And absolutely, he should get a settlement. I just haven't been involved in any of that.”

One of the impediments to Garrett’s settlement was the 2012 post-conviction hearing. The Banner asked Johnson if, given Morante’s 2011 report and a subsequent letter that Johnson wrote to the parole board asking for Garrett’s release, his office should have defended the conviction.

“Probably not,” he said. “I mean, you know, I frankly have no recollection of that piece of it at the time, or at least contemporaneously. I know that happened. I don't recall that being something that we discussed or that I was aware of. But no, I would agree with that. I think that certainly that is something we should probably have not done.”

In a statement, Metro Legal’s associate director for litigation, Allison Bussell, said the city was pleased to settle the case in which Garrett was seeking $18 million.

“Wrongful conviction litigation is complex, and the cost of defense alone would have exceeded the amount of the settlement,” said Bussell. “The circumstances that led to this wrongful conviction never should have occurred. We are thankful for the work of the Metro Police Department’s Cold Case Unit that brought the injustice to light and caused the conviction to be vacated.”

Released in 2011, Garrett fought for 10 years to clear his name.

Of the attendees at that “clandestine meeting,” several remain in law enforcement. Deputy DA Tom Thurman retired in 2016 and MNPD Chief Steve Anderson retired in 2020. Kathy Morante now is the director of the Office of Professional Accountability for MNPD. Susan Niland is a senior public information officer with the TBI. Don Aaron is MNPD’s public affairs director.

And Torry Johnson is a professor at Belmont University’s law school, where he teaches criminal law, criminal constitutional law, criminal procedure and on alternating semesters, a course on wrongful convictions.